Justices step out of character to seize broad issues

WASHINGTON -- The Supreme Court, having built a reputation in recent years for cautious and modest use of its power, showed its other side this week by reaching out on a grand scale to answer questions about race relations that it could have avoided.

In two of the most important decisions in years on racial equality, a five-justice conservative majority on Monday appeared to go out of its way to declare new constitutional law.

More broadly than it had been asked, the court acted against affirmative action in federal programs and against ambitious school desegregation orders by federal judges.

By 5-4 votes in a Colorado affirmative action case and a Kansas City, Mo., desegregation case, the court put aside its self-imposed rule that when the Constitution is involved, decisions should be drawn as narrowly as possible.

The court was not asked to address a 1990 Supreme Court ruling that had made it easier for Congress and federal agencies to set up programs with race preferences. The court nevertheless struck down that ruling, dismissing it as a "surprising" break in a long string of decisions against government's use of race as a deciding factor in policy.

The court had before it only a small federal program that used race not as an automatic basis for awarding government benefits, but only as a partial factor. Yet the majority chose to canvass the history of race relations back to World War II as a premise for striking out against decades of federal affirmative action.

On school desegregation, the court decided a question it had refused to decide six years ago in an earlier phase of the Kansas City case -- a question neither side formally raised in the new appeal.

Still, in its ruling, the court itself answered that very question: Does a federal judge who is overseeing desegregation of inner-city schools act illegally by ordering a high-cost and upscale "quality education" program in the city to entice white students to come in from the suburbs?

Yes, the court said bluntly and firmly: The judge, acting on desegregation in the city, must order changes affecting only city schools and their students.

Stoutly defending the court's authority to answer that question was Justice Sandra Day O'Connor, who in January had chided the school district's lawyer for bringing it up.

Analysts suggested yesterday that the court had opted to speak broadly to send clearer messages on the law of race relations.

One such analyst is Richard A. Samp, chief counsel of a conservative legal advocacy group, the Washington Legal Foundation. He successfully challenged the constitutionality of the scholarships for black students at the University of Maryland at College Park -- a program that, in lower courts, failed exactly the same test that the Supreme Court laid down this week for federal affirmative action plans.

In the school case decided this week, Mr. Samp said, the court clearly spoke beyond the issues put to it. That was also true, he noted, in the affirmative action case.

"No one thought it was necessary [to overrule the 1990 decision] to decide this case," he said. The majority "realized the votes were there to get rid of a decision four members of the court had never accepted."

He recalled that Justice O'Connor, author of the new ruling, also had written a decision in 1989 that had gone far toward scuttling state and local affirmative action plans.

Yet since then, similar programs at the federal level had been surviving challenges, largely because of the court's contradictory ruling in 1990 in favor of federal versions of affirmative action.

"Justice O'Connor seemed to be frustrated that [the 1989 ruling] had not made much difference," Mr. Samp said.

Her new opinion did not say flatly that no official plan to benefit citizens based on race could survive. But it said the strictest constitutional test must be applied to all official uses of race as a deciding factor in public policy and benefits.

Civil rights and women's rights groups and liberal commentators seized on one portion of Justice O'Connor's decision to argue that the court had not meant to scuttle affirmative action, and in fact had left a large loophole that lower courts could use to uphold such plans.

But the O'Connor opinion used the only test the court had within reach to curb affirmative action significantly and make the point that race is a suspicious basis for official action. It was not unusual for the court to acknowledge that some programs might satisfy that test; the court never decides a dispute not before it.

What stood out as the "bottom line" of the O'Connor opinion, for Edward W. Warren, a Washington lawyer, was the emphasis the court put on individual rights, not "group rights," when race was the basis for government action. Mr. Warren himself now awaits a ruling from the court on a race-based congressional redistricting case he argued.

He said that civil rights groups' "rosy view" of the case "is hard to square" with the court's declarations that individuals of all races must be treated equally under the Constitution.

Moreover, Mr. Warren said, the test the court imposed for affirmative action "is a very difficult test to meet." While one can imagine programs that could pass that test, he said, anyone who defends racial preferences will have to offer "very substantial, particularized proof" that those who would receive the preference must have it to overcome continuing difficulties traceable to past racial bias.

"I have never seen quite as clear a rejection of 'group rights,' " Mr. Warren said.